The trial court allowed the amendment, then certified the matter for interlocutory appeal. This Court accepted the interlocutory appeal. On appeal, Kirkwood relies upon Whitaker and the additional authority of Holden v. Balko, 949 F. Supp. 704 (S.D. Ind. 1996) construing Indiana law. In Whitaker, this Court held that a jury instruction which stated in essence that a plaintiff could not recover for injuries if the evidence indicated that her physicians had misdiagnosed and/or mistreated her injuries was clearly erroneous.
F Haff's reliance on Holden v. Balko, 949 F. Supp. 704 (S.D. Ind. 1996), is misplaced. In Holden at 710-14, a federal district court ruled Indiana's Comparative Fault Act, Ind. Code 34-4-33-1 et seq., did not modify or supersede the common law rule imposing liability on an original tortfeasor for aggravation of a victim's injury by a physician's negligent treatment of the injury.
A stranger to the physician-patient relationship should not have a stake in scouring an injured party's medical records searching for some act of malpractice or negligence in order to extricate himself from all or some portion of the damages to the injured party.Id. at 1255, citing Holden v. Balko, 949 F. Supp. 704 (S.D. Ind. 1996). Interpreting Indiana law in Holden, District Judge Hamilton had observed that permitting a defendant in a personal injury action to raise the treating physician's negligence would likely cause substantial delay and complications, including "significant, and generally corrosive, effects on the relationships between injured persons and . . . doctors,. . . ." 949 F. Supp. at 710.
A motion for partial summary judgment as to an affirmative defense "presents a relatively unusual twist on the summary judgment procedures that are the daily fare of the federal district courts." Holden v. Balko, 949 F.Supp. 704, 706 (S.D. Ind. 1996). Generally, where, as here, a defendant pleads an affirmative defense, "the defendant asserts . . . that even if the material factual allegations in the complaint are true, the defendant intends to prove additional facts that will defeat or reduce the relief sought by the plaintiff."
Instead, most courts which permit such motions assume an underlying fault for purposes of the motion, before then construing evidence of the defense in the light most favorable to the defendant. See, e.g., Holden v. Balko, 949 F.Supp. 704, 706 (S.D.Ind., 1996). Such an assumption is troubling.
Plaintiff's theory of the case will raise some challenging issues of foreseeability and intervening causation. See generally Holden v. Balko, 949 F. Supp. 704 (S.D. Ind. 1996) (holding that alleged original tortfeasor could not, to reduce his own liability, assert comparative fault of doctor who treated the injury). Nevertheless, plaintiff seeks one trial about one series of occurrences ending in death, with all potentially responsible parties as defendants. That approach will usually be both more just and more economical than a series of trials against different defendants.
The Act's "proportional allocation of fault is the means by which the Act's objectives are reached, not the ends to which it aspires." Id. Indianapolis Power Light Co. v. Brad Snodgrass, Inc., 578 N.E.2d 669, 672 (Ind. 1991); Holden v. Balko, 949 F. Supp. 704, 707 (S.D.Ind. 1996). In light of this legislative intention, a court could not find that a construction of the Act that prevented a defendant from pleading a nonparty defense after the period of limitation expired — thus forestalling an accurate and complete apportionment of fault — was, for that reason alone, an unreasonable construction given the pre-Act common law scheme that held joint tortfeasors jointly and severally liable and gave defendants no right to contribution from joint tortfeasors.
Id.Indianapolis Power & Light Co. v. Brad Snodgrass, Inc., 578 N.E.2d 669, 672 (Ind.1991); Holden v. Balko, 949 F.Supp. 704, 707 (S.D.Ind.1996). In light of this legislative intention, a court could not find that a construction of the Act that prevented a defendant from pleading a nonparty defense after the period of limitation expired-thus forestalling an accurate and complete apportionment of fault-was, for that reason alone, an unreasonable construction given the pre-Act common law scheme that held joint tortfeasors jointly and severally liable and gave defendants no right to contribution from joint tortfeasors.
Courts have also relied on the doctrine of independent intervening cause to relieve a defendant of complete liability in situations in which a third party's negligence is grossly disproportionate in causing the plaintiff's injury, even though, again, both acts of negligence may be characterized as a proximate cause of the plaintiff's injury. See Holden v. Balko, 949 F. Supp. 704, 708-09 (S.D. Ind. 1996) (discussing the relationship of the intervening cause doctrine and the "all-or-nothing" approach of the common-law rule of joint and several liability); Christlieb, supra, at 165 (classifying superseding causes under three general types, defining an "absorbing cause" as one "that, for one reason or another, is judged to be much more at fault than the other proximate cause," and stating that this type of superseding cause "has no logical use under comparative [negligence] systems"); see also Hercules, Inc. v. Stevens Shipping Co., 765 F.2d 1069, 1075 (11th Cir. 1985) (stating that the doctrine of intervening cause "operated in maritime collision cases to ameliorate the harsh effects of the so-called `divided damages' rule, under which damages were divided evenly between negligent parties"). We believe that such an expansive application of the doctrine of independent intervening cause to negligent acts is inconsistent with New Mexico's system of pure comparative fault.
Indeed, we have determined in the past that the joinder of certain nonparties, while provided for as a procedural matter in the Act, is nevertheless impermissible if it contravenes the substantive common law principles against joining such parties. Edwards v. Sisler, 691 N.E.2d 1252, 1254-55 (Ind.Ct.App. 1998) (citing Holden v. Balko, 949 F.Supp. 704, 709-14 (S.D.Ind.1996)). Indeed, "mixed theory" cases due to the application of the Act to some claims and not to others have previously been addressed, as noted in Templin v. Fobes, 617 N.E.2d 541, 544 n. 1 (Ind. 1993), cited in Perm Harris Madison School Corp. v. Howard, 861 N.E.2d 1190, 1193 n. 3 (Ind. 2007).